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sparks
Maj.
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below is a petition vs. the secretary of veterans'affairs I have submitted and posted here to hopefully assist anyone if they feel thier rights are being violated by the VA system.
When we have to go outside the VA to get proper testing and treatment it should be criminal. If we have to do our own research and provide our own medical opinions only to be ignored, this is criminal in the form of malpractice. As someone from this BB advised in the past, VA physicians are civilians and subject to medical malpractice claims, when this applies, we must address it.
"fiscal pressures" are not ligitimate excuses for malpractice, negligence and incompetence.
I fought the VA for 13 years now, as many of you have, I know I am not alone by far. I finally got 90% to 1999, however, in the VA way they counted the beans and stopped short of 100% even though I am rated 150% for all conditions, they combined for 90%. I am pursuing this action insofar as to send a message that veterans must be given proper diagnostics without the torture of not being diagnosed at all, or misdiagnosed and treatments not in line with the true underlying diagnosis.
If the Sec. of Veterans' Affairs touts statements of "cutting edge" medical treatment for veterans, then he must be made to back up those statements. Our issues are larger than us as individuals and many have died by their own hand for giving up hope. Yes, I got my benefits after a fight that has changed my entire family, so maybe I don't know when to stop fighting now but I have in my mind all who have been denied a diagnosis beyond the presumptive service-connection periods, and this is criminal injustice to many, it should not stand.

IN THE UNITED STATES COURT OF VETERANS APPEALS


NAME

Petitioner,
v.

R.JAMES NICHOLSON,
Secretary of Veterans Affairs,

Respondent.

)
)
)
)
) VA File Number
) CSS xxx-xx-xxxx
) BVA Docket No.
)
)
)
) Case No.
)
)
)



PRO SE PETITION FOR EXTRAORDINARY RELIEF
IN THE NATURE OF A WRIT OF MANDAMUS


Comes the Petitioner, NAME, Pro Se, pursuant to U.S. Vet. App. Rule 21, and he petitions this Court for extraordinary relief in the nature of a Writ of Mandamus, directed to Respondent(s), R. James Nicholson, the Secretary of Veterans Affairs in Washington, D.C., and his employee(s) and agent(s) in the United States Department of Veterans Affairs.

This action seeks to compel the Secretary of Veterans Affairs in Washington, D.C., who has been violating the clear, and indisputable, rights of the Petitioner, to stop said illegal conduct.



FACTORS

Several factors should be noted in this case.

1. That the Petitioner, NAME, is proceeding Pro Se.

Therefore, in the interest of justice, a very liberal construction should be given to this petition in accordance with the doctrine set forth by the United States Supreme Court in Haines v. Kerner, 404 U.S. 1972 as to Pro Se Litigants.

2. That the petitioner has used every means available to him to resolve the issues presented in this Petition for Mandamus Relief, and has no means to enforce his clear, and indisputable rights, as described herein, other than this Petition for Mandamus relief.

3. That Petitioner has exhausted all Administrative Remedies available to him.


PARTIES


1. Petitioner, NAME, is a Citizen of the United States, and resident of the State of Ohio. His address is :

NAME
ADDRESS


2. Respondent, R. James Nicholson, is the Secretary of Veterans Affairs and is named herein in his Official Capacity.




JURISDICTION


1. This Court has jurisdiction over the subject matter of this action under the All-Writs Act, 28 U.S.C. § 1651(a), the general supervisory authority of the U.S. Court of Veterans Appeals over the VA and Board of Veterans' Appeals (BVA) conferred by the Veteran's Judicial Review Act of 1988, Public Law 100-687, 102 Stat. 4105 (11/18/88), 38 U.S.C. § 7251-7292, as amended, and in aid of the Court's potential jurisdiction over the Petitioner's future claims, 38 U.S.C. §§ 7252, 7261(a). Erspamer v. Derwinski, 1 Vet.App. 3 (1990).



FACTS OF CASE

As I’ve stated for 14 years, my health has declined since coming home in 1991 from Desert Storm. See Separation Exam dated 9 May 1991.
On 18 Nov. 2004 I went to the Dayton Ohio VA Medical Center URGENT CARE because I could no longer function. I could not write, walk, or speak properly. I was tested for a possible stroke that was negative. I requested an MRI but it was denied. The Physician gave me the usual office chair neurological testing and said I was normal. The Physician decided I was stressed out and recommended a Psychiatric drug and put it in the computer to find she was not authorized to prescribe this drug. The Physician recommended the Mental Health Clinic (a psychologist) and stated she could not get me an MRI. She advised follow-up in 10 days and I said I would follow-up.
On 23 Nov. 2004, feeling the same, I decided to seek more appropriate medical treatment at Upper Valley Medical Center Emergency Room. Immediately I was admitted and they gave me an MRI, within 12 hours I was diagnosed with acute MS (Multiple Sclerosis), in an uncommon Tumefastic form of Multiple Sclerosis.
Now, two neurologists from Upper Valley Medical Center agree between them that I’ve had Multiple Sclerosis since Desert Storm-1991, based on the multiple lesions on my brain. My brain has been being eaten up with Multiple Sclerosis all this time. I tried to tell the VA and I was plain ignored. I told the VA neurologists they were wrong about the carpel tunnel. I have requested advanced testing for years as in my record, ignored. My family has suffered and endured hardship after hardship from my illness. My two daughters have never known me without this illness. The MRI took 30 minutes.
I request immediate relief. I request 100% service connection for Multiple Sclerosis to 1991, and 100% disability status. Three weeks after Desert Storm I discharged from the U.S. Army sick from Desert Storm. 20 JAN. 1991 is the EVENT. Under Orders I received the SECRET ANTHRAX VACCINE on 20 JAN. 1991. Under orders I took the anti-nerve agent drug Pyridostigmine Bromide starting when Desert Storm began (17 Jan 1991) and every 8 hours as directed by my commander.
I request full military pension as I could have retired healthy in 2003. I request the DVA pay all medical expenses incurred to Upper Valley Medical Center. These were Doctors who would listen to me. I request the DVA provide provisions for the medications I require to fight MS. I request the DVA provide the provisions for physical therapy I require. I request the DVA take care of my family with full comprehensive medical examinations that must include full MRI for each as what could I have brought home to later effect my family. I request pain and suffering for 14 years of struggling with life and fighting the VA bureaucracy. I request the DVA to grant and allow MRI to all Desert Storm Veterans and seek them out immediately.
All of my conditions are listed on the NEW product insert for the Anthrax Vaccine as serious adverse reactions, Multiple Sclerosis, Collagen Vascular Disease (Localized Scleroderma), Cysts (lipoma or nodules) and fatigue. I could go on.
I am also writing in regards to my appeal. The AMC has reached a decision, dated 14 Feb. 2005. However, the decision was retroactive to December 7, 1999. I contend that Judge Thomas J Dannaher remanded my claim and reopened a March 1998 rating decision based on new and material evidence on the same issue. I requested 100% service connection to 1991 because I know it was Desert Storm that made me sick, furthermore, based on new and material evidence, I now feel I was poisoned by the “secret” anthrax vaccine on 20 Jan 1991. My request for this is based on 13 years of denial and physical and psychological torture, in my opinion. I do not want my appeal to be dropped at this time, as the AMC is attempting to force the idea that my issues are resolved, I contend they are partially resolved and more needs to be done. I intend to go all the way to the Court of Veterans Appeals on these issues. I had to go outside the VA to receive a diagnosis, with no insurance I have accumulated many doctors bills. The AMC denied IU because I was working in May 2004. I was working from Oct. 2003 until June 2004 and worked under great distress feeling I may fall out from dizziness, chronic pain, and headaches daily. The AMC denied sleep disorder even though it is a well established symptom of MS and has only increased in severity and duration. The AMC granted a 90% disability rating back to 1999, not considering nor providing another C&P examination or taking into account two neurologists agree I am fully disabled. The AMC also did not consider the fact I have been unemployed do to disability since 30 June 2004. The AMC did not consider this was an acute MS attack that has left me in chronic pain, chronic fatigue, tremors, hyperflexia, chronic headaches, bladder dysfunctions, blurred vision with intermediate double vision, intermediate swallowing difficulties, sexual dysfunction, dizziness, numbness in extremities, lower back problems, speech difficulties, marked cognitive deficits, and Ataxia.
Facts;
20 January 1991, I was injected with a single dose Anthrax vaccine. This vaccine likely contained squalene, an oil adjuvant, illegal in the United States for human use. The 1970 FDA approved anthrax vaccine requires six injections at precise intervals to be effective but it was still ineffective against many strains of anthrax.
The FDA has tested and found squalene in incremental doses in various Anthrax Vaccine lots dating back to Desert Storm, suggesting research using doubling doses to test human tolerance to squalene.
Squalene is known to induce Multiple Sclerosis. Adjuvants also are known to induce Scleroderma. I developed Scleroderma and Multiple Sclerosis since the Anthrax Vaccine. I feel I have other underlying yet undiagnosed autoimmune diseases as well. I feel my entire body is affected with autoimmune disease as a result of Squalene laced Anthrax injection.
As of January 31, 2002, the date on the new product insert, BioPort disclosed that recipients of anthrax vaccine reported allergic reactions and autoimmune disease as a consequence of anthrax vaccination. The product insert lists the following “serious adverse events” as “infrequently reported” by recipients of anthrax vaccine: “pemphigus vulgaris, endocarditis, angiodema and other hypersensitivity reactions, idiopathic thrombocytopenia purpura, collagen vascular disease, systemic lupus erythematosus, multiple sclerosis, polyarteritis, inflammatory arthritis, transverse myelitis and glomerulonephritis. All are dysfunctions of the immune system or diseases that are specifically autoimmune. Cysts are also included in the new product insert.
I was diagnosed by 1993-1994 for collagen vascular disease (localized scleroderma), cysts (lipomas or nodules) and now finally an uncommon form of Tumefastic Multiple Sclerosis. I feel I also have more underlying autoimmune disease the VA will not find do to lack of proper diagnostics, lack of interest as they have displayed due to a conflict of interest and even so far as to state to me their shortcomings are due to “fiscal pressures”. Tell my daughters they cannot go to college because their father went to war, was poisoned by our own DoD, and now he is a “fiscal pressure”, besides being a guinea pig.
The VA refuses to test for antibodies to Squalene, or fund this testing that is available. While the VA has created its’ own antibodies to Squalene assay and have also filed for a patent for their antibodies to Squalene assay back in 1999. How much longer do we have to wait for the truth? Until we die off more?
“Adjuvants can break tolerance. In 1956, Dr. Jules Freund, the Hungarian born scientist who gave his name to the adjuvant he created, warned that animals injected with Freund's developed terrible conditions: allergic aspermatogenesis (stoppage of sperm production), experimental allergic encephalomyelitis (the animal version of multiple sclerosis) and allergic neuritis (inflammation of nerves that can lead to paralysis), allergic uveitis (an inflammation in the eye that can cause blindness). There was no reversing any of these conditions.”

“By 1964, the year when everyone in the military was supposed to get immunized with an oil-boosted influenza vaccine, the Army already knew the risks this vaccine presented for a very specific type of illness. AFEB's Colonel Abram S. Benenson had drawn up a list of diseases that investigators should watch out for in veterans injected with the oily flu vaccine at Fort Dix. Benenson's list read like the contents of a chapter on autoimmune disease in an immunology textbook. It included multiple sclerosis, myelitis, Guillain-Barré syndrome, uveitis, neurodermatitis circumscripta and disseminata, amyloidosis, lupus erythematosus, dematomyositis, scleroderma, chronic pericarditis, Raynaud's disease, rheumatoid arthritis, rheumatoid myositis and acute glomerulonephritis—all of them autoimmune diseases.”
“When troops went to the Middle East to fight the Gulf War in 1991 and the Iraq War in 2003, many—perhaps thousands—received an experimental anthrax vaccine instead of the FDA-approved vaccine. Without their knowledge or consent, the U. S. government used them as human guinea pigs in a massive medical experiment that went disastrously wrong.”

This “secret” anthrax vaccine broke my immune tolerance, inducing multiple Lipoma, Scleroderma and Multiple Sclerosis. I have no doubt this Multiple Sclerosis involves my brain causing inflammation of my peripheral nervous system and this has evolved into irreversible central nervous system damage and chronic pain. I must refrain from most activities or exacerbate my symptoms.

I was told that my claim is being expedited, however, I feel I have been marked for retaliation from the Department of Veterans Affairs. The VA has gotten rid of the only VA Neurologist I have been able to trust. In lieu of seeing a Neurologist on 10 Feb. 2005, I was seen by a Physicians Assistant who changed my medications in a 20 minute exam, without reviewing my medical records or MRI. This change in medication had left me bedridden for nearly a week, and did not manage the chronic pain.
Furthermore, I have repeatedly told VA Prime Care and this PA that while standing, within 20-30 minutes my blood pressure drops out to the point I will pass out. No one at the VA has checked this or seems interested in doing so. I was told by civil neurologists I needed a stress test and tilt table test, the VA has still not addressed these tests, the malpractice continues. I feel the VA is waiting for me to hit the slab, case closed. I have tried to avoid filing torte action against the VA against all advice and my better judgment, nonetheless, the VA and the Department of Veterans Affairs seems to care less about any errors, mistakes, or anything relevant to my health. I do not even trust the medications I receive from the VA.

The VA was not looking at my symptoms together, but was throwing out each symptom based upon a name for a symptom with causes unknown.

I have filed claims since 1993 for conditions and symptoms that are attributable to Multiple Sclerosis. The VA, in their refusal to perform advanced testing has left this diagnosis to remain hidden, untreated, and prolonging my personal suffering as well as my ability to function and interact with my family, friends and colleagues. This has violated everything I ever imagined to be American values. These past 14 years, behind my eyes, has been nothing less than torture.

Judge Thomas J Dannaher, Veterans’ Law Judge, remanded my claim and gave specific orders in this remand.

1. That the claim from a 1998 decision be reopened, additionally, I never received this decision in 1998 in time to file an appeal, another example of the VA methods of taking away limited rights of veterans. This 1998 decision was actually redated from a 1996 decision that I did not receive in time to appeal. Once I received the decision I filed an appeal in 1997 that the VA refused initially because it was beyond the one year appeal period, then the realized their error in not sending the 1996 decision and redated the decision to 1998 but still did not accept my 1997 appeal. My appeal rights were violated in every respect. Another 1998 decision I did not receive at all until 2000, which is the truth, appeal rights gone. My appeal rights were violated a second time, only this time the VA admitted no mistake in not sending out the decision letter. I have enclosed these arguments and letters that went ignored. I seek Justice.

2. “The RO must review the evidence received by the Board since August 2002 and adjudicate the claims considering the newly obtained evidence, as well as evidence previously of record.”

3. “The RO must review the claims file and ensure that all VCAA notice obligations have been satisfied in accordance with the recent decision in PVA, as well as 38 U.S.C.A. §§ 5102, 5103, and 5103A, (West 2002), and any other applicable legal precedent. Particularly, the RO must notify the appellant of the applicable provisions of the VCAA, including what evidence is needed to support his claim, what evidence VA will develop, and what evidence he must furnish.”

4. “The appellant should be afforded a VA examination for the purpose of determining the nature of any disorder involving numbness and tingling in the hands and arms, back, fatigue and/or mycoplasma. The claims folder and a copy of this remand must be made available to and reviewed by the examiner(s) prior to the examination . All indicated studies should be performed. The examiner should be requested to identify all pertinent disabilities present and should reconcile any diagnosis with those in July 1997 and June 2000 VA neurological examinations and the June 2003 examination by a private physician. The examiner should also be requested to present all opinions and findings , and the reasons and bases there from in a clear, comprehensive, and legible manner on the examination report.”

5. Thereafter, the RO should readjudicate the claims of entitlement to service connection for numbness and tingling of the hands and arms, a back disorder, fatigue, and mycoplasma, each claimed as being due to an undiagnosed illness, taking into consideration the evidence submitted to the Board by the appellant (private medical records), all evidence obtained as a result of this remand, and the evidence previously of record. If any of the benefits sought on appeal remains denied, the appellant and his representative should be provided a supplemental statement of the case and an appropriate period of time to respond. Thereafter, the case should be returned to the Board.”

6. This did not happen as directed by the Boards’ remand orders. My rights were violated again. I seek relief.


CLEAR AND INDISPUTABLE RIGHT

Petitioner has a Clear and Indisputable Right pursuant to have my claim returned to the Board of Veterans’ Appeals since all issues were not satisfied, namely fatigue and the reopening of the 1998 rating decision, and all claims I have filed since 1993 should be reopened and proper compensation allowed based on new and material evidence previously not considered because of clear and unmistakable errors by the VA, such as a proper diagnosis. The Board should look at my case and all previously filed claims since 1993, with this new and material evidence obtained after I sought treatment on 18 Nov. 2004 and was turned away from the VA medical center and given an impression of my conditions were “secondary to anxiety disorder” and given sleeping pills and an attempt to give me psychological drugs.
I had to go outside the VA medical center to receive a diagnosis of Tumefastic Multiple Sclerosis on 24 Nov. 2004. Moreover, the VA admitted on the phone to me that they would cover all of the expenses incurred during my stay at this civil hospital and then sent me a letter that only partial payment was authorized.
I never would have gotten a diagnosis at the VA medical center as it is a conflict of interest for the VA to find a service-connected disability. The VA examiner did not review my medical file before my examination as ordered in the remand. In fact, my medical record remained bundled up and the examiner stated “This would take a PHD to figure out.” If the medical examiner would have reviewed my medical record he would have seen noted “Lhermitte’s Phenomenon” documented in 1997, which is a well known sign of Multiple Sclerosis. Instead, I was given a third EMG to rule in Carpel Tunnel Syndrome and be denied a true diagnosis. This malpractice will not stand.
I was poisoned by the “secret anthrax vaccine” on 20 Jan 1991 under orders.
All of my illnesses/symptoms/conditions are listed on the new Product Insert from Bioport dated 31 Jan. 2002. Therefore, I fully contend I be compensated 100% to 20 Jan. 1991, and additionally, be awarded full military pension as I could have retired health in 2003. The VA may argue that I was awarded 90% compensation to Dec. 7 1999. However, this sum does not come close to mine nor my families suffering the last 14 years fighting to be heard by a deaf and unjust system. For the VA to say they are doing JUSTICE by awarding me a fraction of what my family is entitled will not stand.
Now, the Appeals Management Center has made a decision that did not satisfy all of the issues, and instead of returning my claim to the Board of Veterans’ Appeals for review, they have said my issues are resolved and sent my claim back to Cleveland Regional Office where I must start over again, attempting to take away my docket number at the Board of Veterans’ Appeals and losing my place in line to the Court of Veteran’ Appeals. This will not stand. I request the Secretary of Veterans’ Affairs to remedy this injustice by the Appeals Management Center and remedy the Malpractice of the Dayton, Ohio VA medical Center. I request my case be sent back to the Board of Veterans’ Appeals retaining my docket number so I may be afforded the opportunity to go before the Court of Veterans’ Appeals with my case. My claim and case folder should be reviewed since 1991, in its’ entirety so the Board may see the malpractice and negligence.
The facts show, and are contained herein in a letter I wrote to the VA on March 1, 2003 I had to make my own diagnosis of MS based on VA impressions within my VA medical records of “Lhermitte’s phenomenon”. Even still, the VA in their lack of judgment, refused a simple MRI to rule out Multiple Sclerosis. I made several requests for an MRI, all requests were ignored, fell flat, and even ridiculed by VA Physicians. All I state is enclosed herein if one would just look closely.


Lack of a Remedy


Petitioner has no remedy, Administrative, or Otherwise, to stop the violation(s) of his Clear, and Indisputable Rights, by the Respondents, as described above. Other then the instant Mandamus Action.

I have no remedy for this injustice other than this Mandamus Action. The VA, whose interest is conflicted in that my claims since 1993 have been handled by the Cleveland Regional Office and each one mishandled, stamped psychological, delayed, lost, not mailed at all or plain ignored. I have no remedy for the Dayton VA Medical Center is attempting to downplay their malpractice by first getting rid of Dr. Brown, an excellent Neurologist, who works a private practice and also worked at Dayton VA Medical Center and found my illness through her private practice. Dr. Brown studied my VA medical records immediately and wrote her report and has “no doubt” I have had Multiple Sclerosis since 1991. The VA could not take this kind of care and compassion for veterans so they somehow got rid of her.

These facts, demonstrate that the Petitioner has no remedy available to him, other then the instant Mandamus Action.




Argument in Support of Issue of Writ


Petitioner admits that a Writ of Mandamus is a drastic remedy, and one to be invoked in only extraordinary circumstances.

The Court must issue this extraordinary writ in light of these circumstances of 13 years of Malpractice, Negligence, Conflicts of Interest by the Dayton, Ohio VA Medical Center, the Cleveland Region Office and the Appeals Management Center. I have had this MS since Desert Storm, induced by the “SECRET ANTHRAX VACCINE” on 20 Jan 1991, and included on the product insert dated 31 Jan 2002. I developed cysts or (lumps or lipoma or nodules) during desert Storm. I developed Collagen Vascular disease in the form of Localized Scleroderma by 1992-1993. Multiple large lesions on my brain indicates Tumefastic Multiple Sclerosis since Desert Storm. No one within the VA will admit this except the only doctor who bothered to look and the VA got rid of. I do not wish to live my remaining days or years fighting this broken VA medical system, I will if I must because I know there are others, many, many others that have been ignored.


RELIEF

1. Petitioner seeks Issue of a Writ of Mandamus.

2. Petitioner seeks the Writ of Mandamus to require the Secretary of Veterans Affairs to send my appeal back to the Board of Veterans’ Appeals to be reviewed with docket number 02-19 508, if all of my issues cannot be satisfied I will go forward to the Court of Veterans’ Appeals with hired representation and yet another medical opinion.
3. Petitioner seeks to compel the Secretary of Veterans’ Affairs to begin testing Veterans for Antibodies to Squalene as well as cutting edge technology such MRI and MRS for diagnostic tools.

4. Petitioner seeks reopening of all my claims filed since 1993 based on new and material evidence and that those claims be adjudicated and granted retroactive based on clear and unmistakable errors by the VA, namely, in their failure to provide a diagnosis. Petitioner seeks any, and all, other relief that this Court may deem to be proper, and fit, under the circumstances.





Respectfully Submitted,


___________________________________ DATE
NAME
xxx-xx-xxxx





CERTIFICATE OF SERVICE

I, NAME, hereby certify that I have served a true and correct copy of the attached on the Secretary of Veterans Affairs, 810 Vermont Ave., N.W., Washington, D.C. 20420 and on the V.A. Office of General Counsel, 810 Vermont Ave., N.W., Washington, D.C. 20420, by placing a true and correct copy for each individual above in the U.S. Mail addressed to them on 11 August 2005.

________________________________
SIGNATURE

--------------------
"America will never be destroyed from the outside. If we falter and lose our freedoms, it will be because we destroyed ourselves."
Abraham Lincoln

Posts: 89 | From: Ohio | Registered: Feb 2006  |  IP: Logged | Report this post to a Moderator
sparks
Maj.
Member # 343

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I have also filed a torte claim for malpractice, as was pointed out on this BB, VA doctors are civilians and subject to malpractice litigation, we cannot lay down and accept malpractice any longer. I am pursuing this action for the same reasons as the petition. The VA/DoD have taken so much and took me to the brink of no return, I will fight until I no longer breath. I posted this as an example for others I know have experienced the VA malpractice. Malpractice, negligence and incompetence will not stand.


NAME
ADDRESS
7/12/2005
OFFICE OF REGIONAL COUNSEL VA CLAIM#-CSS
ADDRESS
Subject: Torte Claim: NAME
To Counsel:
After much thought and ongoing malpractice and negligence from the Dayton, Ohio VA Medical Center as well as the entire VA system in general this Torte action could not have been avoided. This veteran does not believe in frivolous lawsuits and claims. This veteran does not exaggerate his medical conditions. However, without remorse or taking responsibility for their blatant malpractice and negligence the VA System has let this veteran “fall through the cracks” all too often. There exists a long history of fully documented VA malpractice, negligence, and incompetence pertaining to this veterans’ health.
The VA is insistent on this carpel tunnel syndrome while ignoring complaints of numbness and pain in the arms, hands, and to a lesser degree, the feet. This is documented over and over. The VA was negligent in ignoring their own physicians impression of “Lhermitte’s Phenomenon” and “complaints of unknown etiology” repeatedly. By failing to address these issues and performing further testing to rule out cause for “Lhermitte’s Phenomenon” (a well known sign of MS) and failing to perform testing to find cause for “unknown etiology.” The VA failed to provide any research into possible causes even after remand orders to do so.
Malpractice, negligence, and incompetence prevented this veteran from receiving proper treatments to alter the course of MS and the destruction of nerve axons during relapses. This veterans’ complaints were classic of MS cases, .i.e. numbness in extremities, bladder dysfunction, chronic fatigue, anxiety, antisocial behavior, and depression. These complaints along with VA impressions of “Lhermitte’s Phenomenon” and “unknown etiology” should have prompted further testing, however, even with this veterans’ urgent requests to every physician seen in May 2004, the VA ignored with arrogance. The psychological, physiological, and emotional stesses the VA has put this veteran through since 1992 cannot be underestimated. The VA has created a deep seated distrust with this veteran that goes well beyond normal human error which could be overlooked.
The VA has denied this veteran more advanced testing since 1994 when this veteran realized something was amiss with the VA diagnostics and was not being taken seriously, even ridiculed by VA physicians. This veteran did nothing more than be truthful in all aspects of his complaints and was treated as though he was not being truthful with these subjective complaints.
All these things considered does prove the VA is negligent, incomptent and liable for damages by their misdiagnosis, not once, but over and over again with this veterans’ health. This negligence caused further irreversible brain damage, a psychosocial disorder and only served to exacerbate or worsen this veterans’ health condition. It is the VA negligence that has lost medical records for periods of time, provided inadequate examinations on every single visit resulting in denials of claims for disability compensation from 1993 that at this point are considered to be final decisions by the VA.
It is the VA’s lack of clinical observation, while the VA claims it was difficult to diagnose, and their continuation of this argument when in fact, it is the VA failing to look at the patients history seriously and see the obvious indicators.
This malpractice, negligence and incompetence occurred at various critical stages of this disease of Multiple Sclerosis that could have been properly diagnosed with a 30 minute MRI and properly treated long ago. Now, being left undiagnosed for so long, since 1991, this patient is left with extreme anxiety, chronic pain, chronic fatigue, chronic headaches, intermittent tremors, upper and lower ataxia, intermittent bladder problems, sexual dysfunction, intermittent swallowing difficulties, sleep disorder, intermittent blurred vision, intermittent double vision, light sensitivity, speech difficulty (dysarthria), dizziness, shaky legs, forgetfulness, spasticity, nystagmus, diplopia, optic neuritis, paraesthesia, marked cognitive deficits (dysphasia) and hypersensitivity. Cannot sit or stand for prolonged periods, unable to sustain gainful employment. These problems are exacerbated by normal stressors of daily living. The VA has demonstrated 13 years of malpractice, negligence, incompetence and total disregard for this veteran’s heath. Several requests were made by this veteran to receive advanced testing to get to the truth about this real illness, all requests to the VA fell flat and were ignored and even ridiculed by VA Physicians with an arrogant disposition. The latest malpractice, negligence and incompetence occurred in the last two years as follows.
On 15 Dec 2003, Appeal was remanded by the Board of Veterans’ Appeals for further development. Remand actions that were to be taken included:
“The appellant should be afforded a VA examination for the purpose of determining the nature of any disorder involving numbness and tingling in the hands and arms, back, fatigue and/or mycoplasma. The claims folder and a copy of this remand must be made available to and reviewed by the examiner(s) prior to the examination. All indicated studies should be performed. The examiner should be requested to identify all pertinent disabilities present and should reconcile any diagnosis with those in the July 1997 and June 2000 VA neurological examinations and the June 2003 examination by a private physician.”
12 May 2004 Dayton VA Medical Center. C&P Examination. Dr. Gould. “He claims to have chronic fatigue and numbness in the upper extremities.” “He says there is numbness and tingling in both arms. He says it feels like it comes shooting out from his axilla down his arms.” “He says headaches have increased in frequency in the past four or five years.” “He has white nails (terry’s nails).” “He has several lipoma-like nodules under his skin.” “He seems to be preoccupied with describing all of his problems as being due to his time in military service.” “DIAGNOSTIC AND CLINICAL TESTS: An EMG nerve conduction velocity is ordered for both upper extremities.” Multiple X-Rays ordered. ASSESSMENT: “This veteran insists that he receive some tests like MRIs, and he has a long list of other laboratory medical tests that he wants to have run. It is my opinion that these tests are not medically appropriate. He seems to spend inordinate amounts of time trying to associate how he feels with possible exposures during the Gulf War by reading and searching the internet as basis for request for physicians.” WILLIAM D. GOULD, M.D., M.P.H., STAFF PHYSICIAN.
Dr. Gould apparently did not review this veteran’s C-file prior to examination, as there was no time prior to examination, as this examination was to take place one day prior with a P.A. who this veteran refused to see and who was not qualified to perform his examination. This physician stated “Gait is normal,” when in fact this veteran had an obvious right-side gait disturbance, to which Dr. Gould inquired of this veteran. When Dr. Gould was approached with a request for an MRI, Dr. Gould replied to the effect of ‘budget restraints’ and ‘no need’. Lhermitte’s Phenomenon is a well-known sign of Multiple Sclerosis.
21 May 2004 Dayton VA Medical Center. Neurological C&P Examination. P.A. Cortez. This examination was to assess the veteran’s complaints of headaches, and numbness of the arms. The C file was reviewed including the previous neurological examinations in 1997 and 2000. This examination showed consistent history throughout the examinations. This examiner P.A. Cortez noted, “The headaches are a source of severe anxiety to the veteran. He denies any tearing of the eyes, but he states that his eyes may be “out of focus” during the time of a headache.” “He states that he will tend to drop things during one of these episodes of jabbing pains. He reports poor dexterity with the fingers because of this numbness. He intermittingly will have numbness in his legs up to his knees.” “The cranial nerves II through XII are intact as examined with the exception of a slight ptosis of the right eye.” This examination showed again “subjective neuropathic pain in the upper extremities of uncertain etiology.”
And again this uncertain etiology was dismissed and a third EMG was ordered. With extreme urgency this veteran requested advanced testing, specifically an MRI. Examiner P.A. Cortez also failed to record the veteran’s complaints of bladder dysfunction, stating, “Well, you’re forty years old now, these things will happen.”
With total disregard for this veteran’s MRI request and failure to recognize “Lhermitte’s Phenomenon” and “uncertain etiology” from 1997 and again 21 May 2004 with the examining physicians claiming this veteran’s C-file was reviewed. How could these physicians overlook obvious indicators and “perform all indicated studies”? This examination added to a physiological and psychological anguish with this veteran unable to continue working, facing bankruptcy, losing his family, and being convinced this was all psychological, this veteran was brought to the brink of self-destruction by Nov. 2004.
18 Nov. 2004 Dayton VA Medical Center, Urgent Care. Complaints: “States his right fingers and hand feel “sluggish and uncoordinated” for the past two days. Right arm “feels weird.” States he feels uncoordinated when walking also for “month.” “I’ve been falling apart since July.” Has been seen in neurology in the past for other issues. “Slight stuttering of speech, but he states this is normal for him.” “States he cannot seem to write fast enough or sign his name. States that his right hand was shaky.” “Has chronic headaches for last several months.” “Similar headaches in last three days.” “Complains of dizziness for last several months, only when he stands up.” “Seems to be preoccupied by his back pain and right foot pain that he apparently has had for several years and is upset that the disability claim has not gone through. Appears very anxious “upset about his situation.” Impression: “Right forearm heaviness/uncoordinated.” “I suspect his symptoms are secondary to anxiety and stress related.” “Patient requesting MRI, states that he wants to find out if he has any abn. from gulf war.” Also seems to be again preoccupied with his claim and feels very frustrated.” Prescribed “trazadone 25mg mental health clinic consult.” NEERAJA RAMACHANDRA, M.D. This examination left this veteran thinking this was pure psychological in nature. This veteran was not and will never be prepared to live with a psychological disorder of this nature.
24 Nov. 2004 Upper Valley Medical Center, Emergency Room. Complaints: Same as 18 Nov. 2004. See report of Dr. Evelyn Brown, dated Dec. 21, 2004 (enclosed).
This veteran is left with a severe psychological distrust in the VA Medical Care System. The negligence and malpractice continues to this day as the Dayton VA Medical Center will not address this veteran’s complaints of dizziness when standing. (Has not yet been referred to cardiology) The Dayton VA Medical Center will not address a host this veteran’s medical conditions either attributed to MS or not. This Veteran is forced to depend on the VA for medications required to fight service-connected Multiple Sclerosis, Tumefactive variant. This veteran is currently being threatened to have medications discontinued if not seen at the Dayton VA Medical Center, or forced to go a longer distance for treatment at another VA facility.
The recent actions of the Dayton VA have only exacerbated this veteran’s conditions as the Dayton VA Medical Center is attempting to downplay the extent of this veteran’s condition to minimize their malpractice and negligence. The Dayton VA Medical Center continues to practice a serious lack of clinical observation and judgment in their diagnostic methods. The Dayton VA Medical Center cannot be trusted to provide a diagnosis or an honest disability rating.
The accepted standard of care calls for, at a minimum, an investigation into the possibility of Multiple Sclerosis if Lhermitte’s Phenomenon is observed. The negligence of the Dayton VA Medical Center worsened this veteran’s condition in not providing treatment available to slow the progression of Multiple Sclerosis. The Dayton VA Medical Center’s insistence on carpel tunnel syndrome, while ignoring “Lhermitte’s phenomenon” and “leg numbness up to knees”, is malpractice, negligence, incompetence and torturous treatment that calls for remedy in no uncertain terms. This malpractice and negligence continues to this day as the Dayton VA Medical Center is ignoring symptoms, failing to document symptoms, failing to provide referrals to cardiology to rule out autonomic damage, and failing to provide other referrals to find possible other adverse reactions to the Anthrax vaccine and other Desert Storm exposures.
Furthermore, all of the veterans’ diagnosis are listed on Bioports’ product insert dated 31 Jan 2002 as adverse reaction to the Anthrax Vaccine. The VA, in their malpractice and negligence, will undoubtedly fail to properly diagnose any further adverse reactions that may be present now or in the future.
Below is what the Dayton VA Medical Records Show;
20 Jan 1991 Desert Storm “SECRET” Anthrax Vaccine documented VACC-A on World Health Organization Record.
9 May 1991 Separation Examination; Stated veteran was in poor health, frequent or severe headaches, shortness of breath, stomach problems, dizziness, chest pain, multiple lipomas (cysts), skin disease, frequent indigestion, weight loss, painful shoulder, recurrent back pain, foot trouble, motion sickness, frequent trouble sleeping, depression, excessive worry, loss of memory, nervous trouble, flu-like symptoms and fatigue.
27 Aug 1992 was the first visit to the Dayton VA Medical Center with complaints of numbness in the shoulders & fingertips for at least 6 months, nervous, depressed at times, skin problems, unexplained onset of anger causing dysfunctional behavior. MHC included complaints anger and depression, difficulty sleeping, low self esteem, and no energy. Tests ordered were routine labs, x-rays, and mental health clinic. VA diagnosis-tendonitis, dermatitis, and depression.
1993 filed first VA claim for benefits.
29 March 1993 Dayton VA Medical Center. Complaints: additional lipoma (cysts) on trunk of body, tops of legs, rash on face, fingertips numb and tingling, flu-like symptoms, all since desert storm. Noted: Clinical history-Pain and tingling and numbness of both arms and legs. Diagnostic impression: nothing noted. Routine labs and x-rays ordered.
28 June 1993 Dayton VA Medical Center. Complaints: Since coming home from desert storm in 1991, he began having overwhelming health problems, itching sensation on face, skin rashes, sore spots on face, groin & arms, tingling sensation on fingertips, tired all of the time, becomes irritable, anxious and depressed. Diagnosis- Dysthemic disorder with anxiety, personality disorder, mixed w/ borderline characteristics, multiple somatic complaints.
1993 Claim denied.
29 Sept. 1994 Dayton VA Medical Center. Complaints: numbness in hands, fatigue, morphea (collagen vascular disease). Demanded more advanced testing other than routine labs and x-rays. Examination terminated by P.A. Craig Ankeney, Persian Gulf Registry Examining Physician.
3 Nov 1994- Persian Gulf Registry Exam. Complaints: Lesion on right leg (collagen vascular disease), skin rashes on face, head, chest, back, aggrevated by his nerves, lumps under the skin, insomnia, numbness of the hands and arms from his axilla down nightly, feels nervous all of the time, stiffness of the joints daily, Describes present health as very poor. Vision problem noted without glasses yet, chest pain, swelling under left arm, and lipomas. Diagnostic impression: Nothing noted. Denied Phase II of Persian Gulf Registry Exam. CRAIG ANKENEY, P.A., examiner
23 Nov 1994 Dayton VA Medical Center Dematology. Compaints: skin rashes, morphea, dermatitis.
1995 reopened claim based on undiagnosed illnesses.
1996 claim denied.
March 1996 went to civilian doctor without health insurance to try and get diagnoses. Biopsy of left leg to confirm collagen vascular disease.
10 June 1997 Complaints: Morphea, Lipoma, dermatitis, joint aches, fever.
30 July 1997 Dayton VA Medical Center Neurology. Complaints: numbess in both upper extremities and numbness in feet. Diagnostic impression: “Lhermitte’s phenomenon, intermittent sensory phenomenon of uncertain etiology” Comment: “The sensory changes the patient describes sound very much like Lhermitte’s phenomenon.” EMG ordered to rule out radiculopathy. EMG failed to show radiculopathy, it does reveal a mild bi-lateral carpal tunnel syndrome that would not explain the veterans sensory complaints”. No further testing ordered, “Lhermitte’s phenomenon, “unknown etiology” and/or “uncertain etiology” was never addressed further.
4 August 1997 Dayton VA Medical Center. History: skin lesions, tests ordered are routine laboratory tests, chest x-ray,ESR, ANA, EKG.
1998 claim denied.
15 April 1998 Civil Emergency Room. Complaints: Lower back went out, could not stand or walk after simply kneeling down to pick up a small object.
1999 VA Cooperative Study #475 Antibiotic treatment of Gulf War Veterans Illnesses. Dayton VA Medical Center once per month for one year. Mycoplasma positive.
2000 filed new claim for undiagnosed illnesses from Desert Storm.
22 May 2000 Dayton VA Urgent Care. Complaints were given and not fully documented. Only two complaints were addressed. Complaints: Memory problems, eyes oscillating intermittently, unexplained lymphadenopathy, morphea, dermatitis, numbess bilaterally of the arms and hands, chronic fatigue, aching joints, lower back problems, chest pains, severe headaches behind right eye, high WBC, mycoplasma.
Patient requested testing: POTS, brainstem encephalitis, squalene antibodies, organophosphate posions, PET Scan, SPEC Scan, and MRI Study.
2 June 2000 Dayton VA Medical Center. Complaints: Chronic fatigue, aches, depression. Discussed EMG with VA Doctor, patient wanted further testing like MRI.
22 June 2000 Dayton VA Medical Center MHC. Complaints: Anxiety, fatigue, sleep disorder, headaches.
23 June 2000 Dayton VA Medical Center Prime Care Sharma. Finally enrolled in Prime Care. Complaints: Depression, fatigue, morphea, and lipoma. Patient requesting Hi-Tech testing. No chart available, will schedule double time slot next visit.
10 July 2000 Dayton VA Medical Center. C&P for mental disorder.
13 July 2000 Dayton VA Medical Center. Repeat EMG.
21 July 2000 Dayton VA Medical Center. Complaint: Chest pain radiating left side. EKG performed, suspected rib fracture, negative on x-ray. No diagnostics given.
14 Sept. 2000 Lymphoma vs. Lipoma biopsy scheduled. Patient refused surgery due to no trust in VA or results of biopsy.
26 Sept. 2000 Dayton VA Medical Center Prime Care Sharma. doulble time slot to discuss chart. Complaints: ?depression, chronic fatigue, dermatitis, morphea. No main chart available. Patient declined wrist surgery for carpel tunnel syndrome. Patient declined wrist splints for carpel tunnel syndrome.
The only thing a VA physician was correct on was 12 May 2004 “This veteran insists that he receive some tests like MRIs, and he has a long list of other laboratory medical tests that he wants to have run. He seems to spend inordinate amounts of time trying to associate how he feels with possible exposures during the Gulf War by reading and searching the internet as basis for request for physicians.” WILLIAM D. GOULD, M.D., M.P.H., STAFF PHYSICIAN.
Dr. Gould was correct in this statement in that this veteran has spent an inordinate amount of time of his life trying to figure out what happened. This veteran did spend an inordinate amount of time researching symptoms, because of the Dayton VA lack of interest and failure to diagnose.13 years of this veterans’ time being ignored and falling through the cracks and this continues.
The VA Malpractice has prolonged pain and suffering caused further brain damage than would have been with treatment.
Dr. Gould also summarized the VA’s attitude and mentality concerning sick Desert Storm veterans “It is my opinion that these tests are not medically appropriate.”
The VA in the malpractice of slapping on a psychological diagnosis before ruling out any and all physiological diagnosis is in direct conflict with any acceptable standard of the health care professionals. This is the crux of this malpractice, negligence, and incompetence lasting 13 years with a diagnosis made only outside the VA medical system, and the malpractice continues with others from Desert Storm. The negligence, malpractice, and incompetence must stop. For me as a Desert Storm veteran, I had a good career going until the war. I now realize I have been reduced to a mere guinea pig for the secret second generation anthrax vaccine. For me, the so called American Dream has become the nightmare.
I have used resources available as basis for requests from physicians. My requests are also based on VA physicians impressions within my VA medical records, i.e. my letter of March 1 2003. My requests for an MRI was ignored and even ridiculed by Dr. Gould even though my requests for an MRI were based on impressions within my VA medical record. If I suspected possible MS based on VA doctors impressions, how could VA physicians fail to even look? I am not a doctor. This malpractice is not just an isolated incident, but a string of malpractice, negligence, and incompetence.

NAME

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"America will never be destroyed from the outside. If we falter and lose our freedoms, it will be because we destroyed ourselves."
Abraham Lincoln

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Testvet
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very few vets get this far, they give up thats why the deck is stacked in favor of the VA, you can die fighting them, Frank Fong fought them for 60 years before he was paid, how many of us are going to live and have the will to fight the government for 60 years, I bet his friends and neighbors thought he should of quit years ago, there goes that crackpot again isn't he ever going to learn? When is America going to wake up, we need to be able to hire lawyers from the beginning like SSD apllicants can, why are veterans denied this right, because the authorized national service organizations might lose their chance at snagging a vet to join as he then feels he will get better service from them, what a joke on the american people, a non-adversarial system, when there is money at stake it's all a fight
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sparks
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I submitted this letter 20 months before I finally got a diagnosis of MS OUTSIDE the VA and 2 years before I received a favorable desision to the day 3/1/05. This includes a culmination of quotes from this BB and leading research at the time. I could never do this alone without support from this group as I firmly believe we are fighting for each other.

3/1/2003
DEPARTMENT OF VETERANS AFFAIRS VA CLAIM#- CSS
REGIONAL OFFICE


Subject: Additional Evidence for Appeal in process
Dear: Adjudication Officer,
Please review attached patient notes from 22 MAY 2000.
Dr. Basuray had concerns that I may have had HIV because I have symptoms. Dr. Basuray also stated he needed to rule out common illnesses because of my symptoms. This is objective medical evidence that supports "a wide observation that many Gulf War veterans have symptoms resembling AIDS, MS, Parkinson’s disease and other diseases." If I lacked physiological symptoms of illness (diagnosed or undiagnosed) why would Dr, Basuray mention HIV testing and the need to rule out common illnesses? Dr, Basuray stated he hoped I did not have Lymphoma because of my symptoms.
Why has the VA tested me for LUPUS, Lyme disease, Hepatitis, HIV and many other diseases previously? Because of depression?
Dr. Basuray DID NOT suggest that I may just be “DEPRESSED”.

“The signs and symptoms of GWI are not well established as criteria for particular diseases treated by the DoD or DVA. Indeed, most GWI patients do not readily fit into DoD or VA diagnosis categories, resulting in many veterans receiving unknown diagnoses or PSYCHOLOGICAL DIAGNOSIS.”

“What tends to disguise a correct diagnosis is that Persian Gulf veterans have "a mixture of symptoms that reflect classic Organic Mental Disorder and classic elements of functional thought. At times they appear quite like PTSD or borderline personality."


See Compensation Examination from June 28, 1993 states:
DYSTHYMIC DISORDER WITH ANXIETY
PERSONALITY DISORDER, MIXED, WITH BORDERLINE CHARACTERISTICS
This Examination also states “MR SPARKS APPEARS TO HAVE SYSTEMATIC, DIFFUSE, MULTIPLE SOMATIC COMPLAINTS WHICH MAY OR MAY NOT HAVE ANY SOMATIC BASIS FOR HIS COMPLAINTS.”


The ‘Statement of the Case’ notes several times, i.e., ‘Examination dated XX-XX-XX does not show complaints or findings of fatigue’ or does not show complaints or findings of this symptom or that symptom. In reviewing my patient notes (attached) and comparing them to the examination of MAY 22, 2000, you will find evidence that the VA Doctor and VA Nurse did not note all of the my complaints or address those complaints. This renders the VA lack of veteran complaints during examinations argument MUTE. Additionally, it seems the VA is using this failure by VA Doctors and Nurses to note conditions and symptoms on the patients charts as “lack of objective evidence” that the Veteran has or doesn’t have an illness or disability. This is very disturbing.

Common sense dictates that if a symptom is not complained about or noted in the chart by the Doctors in every examination does not mean the symptom does not exist. This is evidence of VA Doctors and Nurses ignoring my complaints and symptoms, failure to note my complaints and symptoms on my chart constitutes nothing less than MEDICAL MALPRACTICE.

Furthermore, My symptoms come and go frequently (wax and wane) as in many illnesses and as seen in Gulf War Illnesses. Just because I may not complain of this symptom or another during an extremely time limited and Doctor controlled examination does not mean the symptoms or complaints miraculously disappeared. It is now an established FACT that VA Doctors have failed to note all my complaints or symptoms on my charts.


The evidence is clear.

My symptoms from 9 MAY 1991
Standard Form 93 and Separation Examination immediately after returning home from the Gulf War. This SF 93 is in my VA record. This is before ‘Gulf War Syndrome’ was known to exist.
SF93-9 MAY1991
I stated I was in POOR health.

Frequent or severe headaches
Dizziness
Skin Diseases
Shortness of breath
Pain in chest
Frequent indigestion
Stomach trouble
Tumors, growth, cyst
Recent gain or loss of weight
Painful shoulder
Recurrent Back Pain
Foot Trouble
Car, train sea or air sickness
Frequent trouble sleeping
Depression or excessive worry
Loss of memory or amnesia
Nervous trouble of any sort
Chronic Fatigue

This establishes a NEXUS for service-connection for all of the above conditions.

Additional symptoms I’ve had since
9 MAY 1991 include,

1992
Numbness and tingling in arms and hands bilateral-
VA C/P Exam of 7/14/97 states “The sensory changes the patient describes sounds very much like Lhermitte’s phenomenon.”
This is a sign of MS, but then again, the VA refuses to “specifically address” this issue of MY ARMS GOING NUMB.

Morphea (localized scleroderma)- “AN UNUSUAL SKIN CONDITION”-CAUSE UNKNOWN

My SYMPTOMS and health conditions from 9 May 1991 compared to current LAWS regarding Gulf War Illnesses.
PUBLIC LAW 107-103- DEC. 27, 2001
SEC. 202. PAYMENT OF COMPENSATION FOR PERSIAN GULF WAR VETERANS WITH CERTAIN CHRONIC DISABILITIES.
(g) For purposes of this section, signs or symptoms that may be a manifestation of an undiagnosed illness or a chronic multisymptom illness include the following:
*(1) Fatigue.
*(2) Unexplained rashes or other dermatological signs or symptoms.
*(3) Headache.
*(4) Muscle pain.
*(5) Joint pain.
*(6) Neurological signs and symptoms.
*(7) Neuropsychological signs or symptoms.
*(8) Signs or symptoms involving the upper or lower respiratory system.
*(9) Sleep disturbances.
*(10) Gastrointestinal signs or symptoms.
*(11) Cardiovascular signs or symptoms.
(12) Abnormal weight loss.
(13) Menstrual disorders. -
*Indicates a match with my ORIGONAL SF-93 SYMPTOMS indicating a NEXUS to Gulf War Illnesses and therefore service connection.

I again reviewed Dr. Pani Akuthota’s examination findings dated 7/13/2000.
The facts are Dr. Pani Akuthota FAILED to note my SYMPTOMS correctly and Dr. Pani Akuthota noted only BOTH HANDS GOING NUMB and IGNORED MY COMPLAINTS THAT IT IS MY ARMS AND HANDS THAT GO NUMB AND THAT IT RADIATES FROM MY ARMPITS DOWN TO MY HANDS. The VA has proven again in the Statement of the Case it is attempting to ignore my arms going numb. Statement of the Case page 21. “The veteran indicates he feels his complaints of pain shooting down his arms was not addressed. The problem listed as the reason performing the nerve conduction testing was tingling and numbness of both hands with retrograde parasthesias to both hands.” This suggests the pain and numbness is originating from my hands back up through my arms. This is backwards because is stating my hands are causing my arms to go numb and this would suggest carpel tunnel syndrome. My hands and wrists are not the origin of my pain and numbness as is in carpel tunnel syndrome. I have no wrist pain as in carpel tunnel syndrome. The shooting pain and numbness originates from my armpits (brachial plexus area) down to my hands. PLEASE ADDRESS THE CORRECT SYMPTOMS! Again, I feel my complaints of my arms going numb with shooting pain and numbness down to my hands was not properly addressed. I know for fact that I SPECIFICALLY ADDRESSED this issue and Dr. Pani Akuthota DID NOT. The facts are Dr. Akuthota stated his method of NEEDLE EMG would be a “PAINLESS” procedure. Dr. Pani Akuthota did not penetrate my skin or my muscles during the “Needle Electromyogram”. Dr. Akuthota noted “THE PATIENT TOLERATED THE PROCEDURE WELL.” I’ve had a NEEDLE EMG previously and I know what it feels like to have the EMG NEEDLES penetrate the muscles. Dr. Pani Akuthota did not perform a NEEDLE EMG. It appears the VA in order to deliver a carpel tunnel diagnosis as opposed to an undiagnosed illness requiring compensation coached Dr. Akuthota. All this so the VA could negate the Compensation and Pension notes (CAPS) dated 3/17/00. This is why another C/P examination was scheduled. This was done so the VA would not have to find the claim in favor of the veteran. I suppose the VA will now try to use these statements against me but I was there and I am fully prepared to submit to a polygraph on this issue or any other issue. It is my belief that during the first EMG of July 1997 the examiner paid close attention to my complaints and noted them as such. Dr. Akuthota’s examination was a farce and MEDICAL MALPRACTICE. Furthermore, I am requesting again that the VA toss out Dr. Akuthota’s examination on the grounds of the VA and Dr. Akuthota having prejudicial conflict over me, and also the VA has a conflict of interest in my examinations, diagnosis, and treatment.

Refer to the Compensation and Pension notes (CAPS) notes dated 3/17/00 that the VA regional office inadvertently sent to me with my records regarding my VA rating decision of 3/24/98 states;
“It appears that this rating decision overlooked 38 CFR 3.317(a)(1)(ii) which provides that a veteran may be compensated for certain disabilities due to undiagnosed illness if they became manifest while in service or to a degree of 10% or more while no later than 12-31-01; and cannot be attributed to any known clinical diagnosis. “The veteran’s latest VA examination (dated July/August 1997 and cited in the aforementioned rating decision) showed an impression of “ intermittent sensory phenomena of uncertain etiology” as to the veteran’s bilateral numbness and tingling of the arms. Carpel tunnel syndrome was ruled out. In addition, the symptoms described by the veteran may entitled him to a 10% evaluation.”
“CARPEL TUNNEL SYNDROME WAS RULED OUT.”
Instead of applying THE LAW as the VA even admits in the CAPS notes the VA scheduled another EMG only after they found I had these CAPS notes. The VA has again violated what limited rights I have as a veteran.

DVA letter dated June 16, 2000 to my Congressman John Boehner the VA stated my “request for a personal hearing would be honored. He will be contacted by us shortly.” Instead of “honoring” my request for a personal hearing the VA issued a new decision letter further violating my limited rights as a veteran. The VA has now established a pattern of violating my limited rights and this pattern is in my records to review.
I have submitted evidence of exposures of many types to the VA from service in the Gulf War. THIS EVIDENCE IS ALSO IN MY RECORDS TO REVIEW.
For 10 years the VA has ignored my symptoms and the extent of my illness. It seems the VA also employs a repetitive notion strategy in that if the VA keeps repeating something then eventually I will accept it as truth. The VA is doing this by insisting some of my symptoms are due to DYSTHYMIC DISORDER DIAGNOSIS. The VA’s “diagnosis” of DYSTHYMIC DISORDER is merely a name for a set of chronic symptoms. Basically all the VA is saying is I am “depressed” and ignoring all of my other symptoms of undiagnosed illness. This is where I have a major problem.

During my latest psychological examination at the VA, the VA psychologist stated to me “We just don’t know what’s wrong with you guys.” however I’ll bet this statement never made it to the VA examination report.

Without ruling out diseases/illness for the cause of physiological symptoms a diagnosis with DYSTEMIC DISORDER on itself is MEANINGLESS. The diagnostic criteria for dysthymic disorder includes that it first is established that the symptoms are not due to the direct physiological effects of a substance (e.g., a drug of abuse, a medication) or a general medical condition. A “substance” would also include Environmental Toxins.

The VA Statement of the Case notes that the neck injury I sustained in basic training is “otherwise unattested injury”. I refer to Compensation and Pension Examination dated Dec. 5, 1997 as well as my Separation Examination from May 9, 1991 RECURRENT BACK PROBLEMS as I have usually have referred to this as one of my “back problems” as it is located at the base of my neck. This is not an “otherwise unattested injury”. Please let me make this much clear, I am looking for answers. I WILL NOT STOP. I am willing to include any possible hypothesis for my illnesses and complaints in finding the answers. I have presented and will continue to present various theories for my illness with an open mind as I always have. I am proactive in pursuing the truth not just for my benefit also my brothers in arms who also suffer the recklessness and tin ear of the VA health care system.

The Mycoplasma issue is now being pushed aside by the VA by their refusal to publish the VA study results citing “procedural” conflicts. The VA Statement of the Case says “There is no medical evidence showing that the veteran himself acquired Mycoplasma while on tour during the Gulf War, as opposed to another source.” This is a hypocritical position for the VA to take because the VA found enough Mycoplasma positive Gulf War Veterans with multiple chronic symptoms to conduct the study on Mycoplasma infections in Gulf War Veterans. This itself indicates a (nexus) between Gulf War Veterans and Mycoplasma. The Statement of the Case states, “The private treatment reports from Dr. Armacost, attached to the examination did not discuss Mycoplasma and did not relate any disabilities to Mycoplasma.” This statement says volumes about the VA’s tin ear. The first time I had ever heard of Mycoplasma is from the VA letter inviting me to participate in the VA Mycoplasma study. The VA is trying to conclude (in error) that since it was never mentioned in my records before the VA study, it must not be an issue. The VA initiated the Mycoplasma study so how could my private physician have known about its existence before Mycoplasma was even theorized as causing diseases at all? Dr. Armacost is also an Army Reserve Doctor and he closed his private practice shortly after my first visit and before I could schedule other appointments and address my other symptoms. Dr. Armacost actually stated to me during my examination that I was “All Fu@#!d Up”. Somehow I think he refrained from noting THAT opinion on my charts.

I am requesting the VA to identify the types of vaccines on my in-service International Certificates of Vaccination. As I cannot identify the vaccine codes used and this information is important to show for the VA record my specific vaccine exposures.

“Veterans are subjected to much more stress by trying to navigate the bureaucracy of the VA, and with worrying how to cope with medical conditions that are ignored. All the while being unable to work, and wondering how to feed or house a family.''
The VA Statement of the Case States “The Veteran points to a case study within one article where the subject was stationed at a base defended by the veteran during his Gulf War tour.” That veteran was pointed out because of many obvious similarities to my symptoms of that veteran, and myself being at the same location in the Gulf War theatre as that veteran.
“Testifying in March 1994 before a subcommittee of the House Armed Services Committee, Sgt. George Vaughn ... described a SCUD attack ... in which he claimed he was exposed to some toxic chemical. During an alert, Vaughn experienced a problem with sealing his gas mask and the lens fogged up ... but in the heat of the moment ... [he] took the mask off his head. He immediately experienced a bitter almond taste and began choking. Within a day or two, Vaughn and three other members of his unit began to experience nausea, diarrhea, and severe fatigue. The gastrointestinal symptoms persisted after the four men returned from the Gulf. All four also developed fatty skin tumors called angiolipomas, which were surgically removed but have grown back repeatedly. Vaughn testified that the tumors have caused numbness in his arms and limited his motor skills.''
My experience is not that obvious but I do remember like it was yesterday many weeks of washing away the black soot from my nostrils.
I decided to not have the VA surgically remove my lipomas.
I am requesting additional testing based on Gulf War Illness research using MRS (Magnetic Resonance Spectroscopy). And based on Department of Veterans Affairs announcing “evidence that many ailing veterans of the 1991 Persian Gulf War may be suffering from brain damage caused by toxic exposures.” Also, I request testing for creatine levels and NAA levels (reduced NAA to creatine ratio), Dopamine levels, and PON1 type Q levels. Postural Orthostatic Tachycardia Syndrome, Brain stem encephalitis, RNAs segments Homologous to Chromosome 22, Squalene antibodies, Organophosphate poisons, Enteroviruses, PET Scan, SPECT scan, MRI Study, levels of the enzyme paraoxonase and Audiovestibular tests.

My request is based on the MOST RECENT GULF WAR ILLNESS RESEARCH:

“Type Q is the allozyme paraoxonase/arylesterase that most efficiently hydrolyzes several organophosphates including SARIN, SOMAN, and DIAZINON. These findings further support the proposal that NEUROLOGIC symptoms in some Gulf War veterans were caused by environmental chemical exposures.”

“Some Gulf War veterans may have delayed, chronic neurotoxic syndromes from wartime exposure to combinations of chemicals that inhibit butyrylcholinesterase and neuropathy target esterase.”

“Veterans with different Gulf War syndromes have biochemical evidence of neuronal damage in different distributions in the basal ganglia and brainstem.”

“The 3 factor-derived syndromes identified among Gulf War veterans appear to represent variants of a generalized injury to the nervous system.”

“Results provide evidence that there are subtle differences in CNS function among GW-deployed veterans who report chemical warfare agent exposure while in the GW Theater.”
According to the Research Advisory Committee on Gulf War Veterans Illnesses:
"It is increasingly evident that at least one important category of illness
in Gulf War veterans is neurological in character, according to recent
scientific studies," the committee reported. "Magnetic resonance
spectroscopy suggests a loss of neurons in selected brain areas in ill
veterans, particularly in the basal ganglia and brainstem."

“The Department of Veterans Affairs recently announced that Gulf veterans have been approximately twice as likely as non-Gulf veterans to develop a serious neurodegenerative disease, amyotrophic lateral sclerosis, in the years since the war. In addition, studies have found that Gulf veterans report significantly higher rates of diagnosed respiratory conditions, migraines, skin conditions, gastrointestinal conditions, and some psychological conditions, than non-Gulf veterans.”


“Frequent problems reported are gastroenteritis, colitis, dermatitis, and other symptoms not associated with traditional military or VA diagnostic categories or specific ICD-9-coded diagnoses. Many of the cases included nonspecific symptoms of chronic fatigue, skin rashes, muscle and joint pain, headaches, memory loss shortness of breath, gastrointestinal and respiratory symptoms, and other symptoms that do not readily fit into a common case diagnosis”

“The most common symptoms of GWI include aching joints, chronic fatigue, memory loss, headaches, sleeping difficulties, skin rashes, loss of concentration, depression, muscle spasms, nervousness, diarrhea, blurred vision, anxiety, problems breathing, chest and heart pain, dizziness, nausea, stomach pain, sight sensitivity, loss of balance, hives, frequent coughing, chemical sensitivities, eye pain and other vision problems and bleeding gums and other dental problems.”

“Their studies show that many Gulf War vets suffer from a subtle form of brain and nerve damage caused by low-level wartime exposure to a mixture of toxic chemicals, including pesticides, insect repellent, nerve gas, and experimental anti-nerve-gas pills. What's more, if they are correct, these doctors believe "the country potentially could be sitting on a time-bomb of neurological illness,"
I have attached Project DoD-65 Department of Defense Study that has duplicated these neurological findings.


There is overwhelming evidence in my VA Claim files including signs and symptoms since returning from the Gulf War. I have also received the “Khamisiyah” letter from the DOD letter stating I “may have been exposed to chemical weapons” in the Gulf. All of this evidence requires application of “38 USC Sec. 1118. Presumptions of service connection for illnesses associated with service in the Persian Gulf during the Persian Gulf War.” And, as I am currently unemployed AGAIN, due to sociological, psychological and VERY REAL PHYSIOLOGICAL complications exacerbated by otherwise normal stress in the workplace and with no realization of someone hiring a Gulf War Veteran, I am requesting a 100% Service-Connected “Presumption of service connection for illnesses associated with service in the Persian Gulf during the Persian Gulf War” disability rating to satisfy my Appeal that is in process. Now I have migraines most every day for many years. I wake up more often than not with my arms painfully numb and tingling and more so if I have performed any type of work. I lose my temper very easy and frequently carry on like an old man with Alzheimer’s. Now I have a growth on my forearm and a painful growth on my neck and they will not go away. I am now on the verge of losing my family and my home.

If the VA cannot give me proper diagnosis, care and treatment, I am entitled to private medical services at the VA's expense. (38 USC Section 1728.) And I request to have the MRS and the other tests noted performed by private medical services at the VA’s expense if the VA is unwilling to perform these tests.

I REQUEST THE VA TO RULE OUT CAUSE FOR SYMPTOMS AND CONDITIONS AS A RESULT OF EXPOSURE TO ENVIRONMENTAL TOXINS FROM THE GULF WAR.

I swear under penalty of perjury that the above statements are true to the best of my knowledge and belief.
Sincerely,

Sparks

--------------------
"America will never be destroyed from the outside. If we falter and lose our freedoms, it will be because we destroyed ourselves."
Abraham Lincoln

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7.22 COMPENSATION FOR DISABILITIES ASSOCIATED WITH GULF WAR SERVICE
a. Background.
(1) The Persian Gulf War Veterans’ Act. On November 2, 1994, Congress enacted the "Persian Gulf War Veterans' Benefits Act," Title I of the "Veterans' Benefits Improvements Act of 1994," Public Law 103-446. That statute added a new section 1117 to Title 38, United States Code, authorizing VA to compensate any Persian Gulf veteran suffering from a chronic disability resulting from an undiagnosed illness or combination of undiagnosed illnesses which became manifest either during active duty in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more within a presumptive period following service in the Southwest Asia theater of operations during the Persian Gulf War.
(2) The Persian Gulf War Veterans Act of 1998. The “Persian Gulf War Veterans Act of 1998”, Public Law 105-277 authorized VA to compensate Gulf War veterans for diagnosed or undiagnosed disabilities which are determined by VA regulation to warrant a presumption of service-connection based on a positive association with exposure to a toxic agent, environmental or wartime hazard, or preventive medication or vaccine associated with Gulf War service. This statute added section 1118 to Title 38, United States Code.

--------------------
"America will never be destroyed from the outside. If we falter and lose our freedoms, it will be because we destroyed ourselves."
Abraham Lincoln

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I gave fair warning regarding malpractice.


5/24/2001
DEPARTMENT OF VETERANS AFFAIRS VA CLAIM#- CSS
REGIONAL OFFICE
FEDERAL BUILDING


Subject: NOTICE OF DISAGREEMENT
Dear: Adjudication Officer,
I feel your Rating Decision of Oct 19, 2000 is wrong.

1) Evaluation of Numbness and tingling of the hands and arms due to undiagnosed illness currently found not service connected is wrong. Evidence inadvertently sent to me by the VA from the Compensation and Pension System shows this issue was addressed and found to be in my favor. While I may have carpel tunnel syndrome that originated from service, as I was a tank mechanic and had continuous hand and wrist motion in the hand tools used to repair equipment, however, this is an incomplete diagnosis. Neurological examination of July and August 1997, as well as the decision letter dated 3/24/98. These documents do reflect probable diagnosis of mild bilateral carpel tunnel syndrome, however, they also state this “would not explain the veterans sensory phenomenon”, and “The impression was intermittent sensory phenomenon of uncertain etiology”.

A diagnosis of carpel tunnel is also incomplete for the following reasons. The latest examiner Dr. Pani Akuthota on 7/13/2000 basically ignored complaints of my arms going numb from the armpits down, which reflects in the examiners report where only the hands are mentioned. My arms go numb from the lower portion of my brachial nerve plexus in my armpits radiating down my arms and fingers shooting pain and numbness bilaterally, not from my wrists. Dr. Pani Akuthota overlooked this complaint and failed to make a complete diagnosis. Damage to the brachial nerve plexus could be detected with CT scans or MRI, yet the VAMC has never run these tests. Dr. Pani Akuthota failed to include the shooting pain radiating from the armpits down when my hands go numb. I believe that my physical complaints during the rating exam 7/13/2000 were intentionally omitted by Dr. Pani Akuthota. I ask the rater to lend no weight upon the testimony or report submitted by Dr. Pani Akuthota, since he failed to list my complaints during the examination including complaints of shooting pain down my arms, this condition is well documented in my case files and records. Omission of facts constitutes remedy by SF-95, Federal Tort Claim, or United States District Court proceedings against the physician. Carpal tunnel syndrome (CTS) refers to numbness, tingling, weakness, and discomfort in the wrist and hand. It is caused by compression of the median nerve at the wrist. CTS usually start gradually, with a vague aching in the wrist, extending into the hand or forearm.

Furthermore, this veteran is well aware of the importance of expressing all health problems and complaints during a compensation and pension examination, which I did concerning the shooting pain in my arms it but was not written down by Dr. Pani Akuthota.

Also refer to the CAPS notes dated 3/17/00 that the VA regional office inadvertently sent to me with my records regarding my VA rating decision of 3/24/98 states;
“It appears that this rating decision overlooked 38 CFR 3.317(a)(1)(ii) which provides that a veteran may be compensated for certain disabilities due to undiagnosed illness if they became manifest while in service or to a degree of 10% or more while no later than 12-31-01; and cannot be attributed to any known clinical diagnosis. “The veteran’s latest VA examination (dated July/August 1997 and cited in the aforementioned rating decision) showed an impression of “ intermittent sensory phenomena of uncertain etiology” as to the veteran’s bilateral numbness and tingling of the arms. Carpel tunnel syndrome was ruled out. In addition, the symptoms described by the veteran may entitled him to a 10% evaluation.”

Title 38 CFR pg. 334 SEC 4.3 states after careful consideration of "ALL" procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant.
Upon receiving the CAPS notes I was certain the VA decision would fall in my favor on this issue but instead your decision letter states “this impression was not specifically addressed.” I am disappointed and extremely disillusioned in a VA system that refuses to obey the few laws and regulations meant to assist veterans. This VA system says I am 30% disabled with anxiety. I cannot disagree with this diagnosis but I contend that the VA system has caused my anxiety problems. I am requesting this CAPS notes issue be the basis for a “clear and unmistakable error” by the VA, and award all benefits denied because of this clear and unmistakable error including retroactive benefits as I have submitted claims of this undiagnosed illness since 7/26/95.

Nothing has changed to make a diagnosis of carpel tunnel syndrome more accurate now than in 1997. The fact is my condition remains undiagnosed, and has only gotten worse. The numbness in my arms as well as my other complaints are currently symptoms of an undiagnosed illness.

Medical examination dated 8/27/92 shows numbness of arms and hands. This was my first examination in the VA health care system. I request this record be adequate to show service connection within one year after departing the service. Separation examination dated 9 May 1991 at time of discharge did not allow for a place to specifically address numbness and tingling of the arms.

2) Evaluation of back condition due to undiagnosed illness currently found not service connected is wrong. Separation examination dated 9 May 1991 shows recurring back pain that was later evaluated and denied, this back condition occurred in service and severity has increased over the years. My spine at the base of my neck was injured in basic training. Examination dated 3/30/93 states “There is straightening of the normal lordotic curvature of the cervical spine which I think is positional in nature.” Examination dated 6/3/1993 states “There is a mild degree of levoscoliosis involving the lower one half of the thoracic spine.”

My back problems originated in service, and could be causing the numbness in my arms and hands as well. An evaluation of a service connected back injury causing a secondary condition of pain and numbness of my arms and hands would seem to be the most likely diagnosis. I request my back condition be evaluated as having occurred in service as noted in the records and therefore service connected. I request my back condition re-examined and re-evaluated as injury resulting from military service. I do not feel a complete C&P exam addressed this issue. Request new C&P for my back conditions. Request CT scan or MRI to determine exactly what is causing my back problems.

3) Evaluation of fatigue due to undiagnosed illness currently found not service connected is wrong. Separation examination dated 9 May 1991 shows chronic fatigue. In addition, my records contain an out-going SF-93 stating I experienced chronic fatigue in country and this qualifies as evidence of such illness in addition as being a service connected undiagnosed disabilities. See 38 U.S.C. SEC 1154(b). It has been established that GW veterans' have a higher rate of fibromyalgia and chronic fatigue syndrome than our non-deployed forces. As per Persian Gulf Registry findings, this condition is common for personnel who participated in the Gulf War and would constitute a well-grounded claim since I have had this condition since my return.

Title 38 CFR Ch I (7-1-96 Edition) pg.385, states that if symptoms are nearly constant and restrict daily activities to 50 to 75 percent of the pre-illness level; or which wax and wane, resulting in periods of incapacitation of at least four but less than six weeks total duration per year a rating of 60% should be applied. In addition, pg. 334 SEC 4.3 states after careful consideration of "ALL" procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. See SEC 3.102 of this chapter. The reasonable doubt doctrine is also applicable even in absence of official records, particularly if the basic incident allegedly arose under combat, or similarly strenuous conditions, and is consistent with the "probable" results of such known hardships (pg 171). This veteran states for the record that I have had chronic fatigue for over 8 and one half years and improvement has not occurred.

According to 38 CFR Part 3, the Secretary of the Department of Veterans' Affairs concluded that the two-year presumption period is inadequate because: (1) Despite a broad federal research effort, there is insufficient data about the nature and causes of these illnesses to justify limiting the presumptive period to two years; and (2) it prevents VA from compensating certain veterans with disabilities due to undiagnosed conditions that may have resulted from their service in the Persian Gulf War. I believe that it would also warrant undiagnosed illness back to the original date of claim. The Secretary therefore extended the presumption period to 2001. See 38 U.S.C. SEC. 1154(b). Reasonable doubt should be given to the combat veteran, based upon known ailments experienced by that group of veterans'.

Request that the Mycoplasma be recognized as the primary causative factor for chronic fatigue which has been documented and peer-reviewed with GWS symptoms presenting themselves exactly in line with the symptoms of Chronic fatigue syndrome, Dr. Garth Nicolson has published these results. Mycoplasma infections are being found in patients with Chronic Fatigue Syndrome and Fibromyalgia by the Institute for Molecular Medicine in Irvine, CA, and Immunosciences Laboratory in Beverly Hills, CA. The Department of Medicine, University of California, Irvine. And, Dr. Nicolson has taught his Forensic DNA-PRC techniques and gene tracking to 8 personnel contracted by the Department of Defense.

4) Evaluation of Mycoplasma due to undiagnosed illness currently found not service connected is wrong. The VA is currently conducting research into mycoplasma causing undiagnosed Gulf War Illnesses based on Dr. Garth Nicolsons’ research.
38 CFR 3.317(b) For the purposes of paragraph (a)(1) of this section, signs or symptoms which may be manifestations of undiagnosed illness include, but are not limited to:
(1) Fatigue
(2) Signs or symptoms involving skin
(3) Headache
(4) Muscle pain
(5) Joint pain
(6) Neurological signs or symptoms
(7) Neuropsychological signs or symptoms

Listed only as symptoms pertaining to my claim. This veteran states for the record that I have had all of the above symptoms since returning from the Persian Gulf War and improvement has not occurred.

Parts of my claim have also been denied because of “not well grounded.” I request that my claim be readjudicated and treated as if the denial or dismissal had not been made. The VA also failed to address my appeal issue. The VA stated they would honor my request for a personal hearing but in fact I was seeking an appeal hearing that I requested on VA form 9, dated 7-28-97. I want to know why my requests for that appeal hearing are being ignored?

Sincerely,

Sparks

--------------------
"America will never be destroyed from the outside. If we falter and lose our freedoms, it will be because we destroyed ourselves."
Abraham Lincoln

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Jim,

You may not need this, but I'm just putting this out here in case you can use it in any way. --Gale


M21-1, Part VI - CHAPTER 7. Pertaining to vaccines


--------------------------------------------------------------------------------
http://www.warms.vba.va.gov/admin21/m21_1/part6/ch07.doc

Excerpt:


7.04 DEFINITION OF INJURY--38 U.S.C. 101(24) AND 38 CFR 3.6(a)

Active service is defined as including any period of inactive duty for training during which the claimant was disabled or died from an injury incurred or aggravated in line of duty. Nontraumatic incurrence or aggravation of a disease process during a period of inactive duty training is not defined as an injury, except for the following: an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident which occurs during such training or while proceeding directly to or returning directly from such training. (See 38 CFR 3.6) Additionally, if the evidence establishes that an individual suffers from a disabling condition as a result of the administration of an anthrax vaccine during inactive duty training, the individual may also be considered disabled by an injury. (See GCPREC 4-2002)
also,

7.22 COMPENSATION FOR DISABILITIES ASSOCIATED WITH GULF WAR SERVICE

a. Background.
(1) The Persian Gulf War Veterans’ Act. On November 2, 1994, Congress enacted the "Persian Gulf War Veterans' Benefits Act," Title I of the "Veterans' Benefits Improvements Act of 1994," Public Law 103-446. That statute added a new section 1117 to Title 38, United States Code, authorizing VA to compensate any Persian Gulf veteran suffering from a chronic disability resulting from an undiagnosed illness or combination of undiagnosed illnesses which became manifest either during active duty in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more within a presumptive period following service in the Southwest Asia theater of operations during the Persian Gulf War.

(2) The Persian Gulf War Veterans Act of 1998. The “Persian Gulf War Veterans Act of 1998”, Public Law 105-277 authorized VA to compensate Gulf War veterans for diagnosed or undiagnosed disabilities which are determined by VA regulation to warrant a presumption of service-connection based on a positive association with exposure to a toxic agent, environmental or wartime hazard, or preventive medication or vaccine associated with Gulf War service. This statute added section 1118 to Title 38, United States Code.

----------------------------------


There's a couple of other links that may be helpful to someone filing a claim for vaccine injury:

http://www.warms.vba.va.gov/admin21/precop/2002op/prc04%5F02.doc

Department of Memorandum
Veterans Affairs

Date: May 14, 2002 VAOPGCPREC 4-2002

From: General Counsel (022)

Subj: Meaning of “Injury” for Purposes of Active Service – 38 U.S.C. § 101(24)
**************************
To: Director, Compensation and Pension Service (21)


QUESTION PRESENTED:

Whether a former member of the Army Reserve who received two anthrax inoculations during inactive duty training and who alleges suffering from chronic fatigue and chronic Lyme-like disease as a result of these inoculations may be considered to have been disabled by an injury in determining whether the member incurred disability due to active service.

DISCUSSION:

1. The claimant had active duty service in the United States Army from May 29, 1995, to June 18, 1999, and was then assigned to the Army Reserve. In preparation for a required two-week tour of duty in Korea, the claimant received three anthrax inoculations, the first two of which were received while on inactive duty training on February 12 and March 11, 2000. The claimant received the third inoculation on March 25, 2000, while in civilian status. The claimant was deployed to Korea from April 10, 2000, to April 24, 2000. The claimant has filed a claim with the Department of Veterans Affairs (VA) seeking service connection for chronic fatigue and chronic Lyme-like illness claimed to have resulted from the anthrax inoculations.

2. Pursuant to 38 U.S.C. §§ 1110 and 1131, service-connected disability compensation may be paid for disability resulting from injury suffered or disease contracted in line of duty “in the active military, naval, or air service.” Section 101(24) defines the term “active military, naval, or air service” as including “active duty, any period of active duty for training during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty, and any period of inactive duty training during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty.” (Emphasis added.) Thus, in the case of inactive duty training, only if the individual suffered an “injury” during such service can disability resulting from such service provide a basis of eligibility for disability compensation.

3. The question of what constitutes an “injury” for purposes of section 101(24) must be considered in light of three previous General Counsel opinions in which we analyzed the distinction between “injury” and “disease” under that statute. One such opinion, VAOPGCPREC 86-90 (O.G.C. Prec. 86-90), concerned whether a heart attack sustained following heavy exertion while on inactive duty training was an injury within the meaning of section 101(24). Medical evidence in that case indicated that the heart attack was the result of coronary artery disease, which existed prior to the training period, although the event may have been precipitated by physical exertion. On those facts, we concluded that the claimant’s heart attack was not caused by an injury, but rather was attributable to disease.

4. In VAOPGCPREC 86-90, we examined the medical cause of the heart attack. We noted the consensus among medical specialists that excessive effort and strain cannot damage a normal heart and concluded that the heart attack was the result of a disease process. We further concluded that Congress intended to exclude “nontraumatic incurrence or aggravation of a disease process, and that manifestations of cardiovascular disease, such as heart attacks of nontraumatic origin, fall within the excluded class of disability, i.e., do not constitute injuries under the statute.” In Brooks v. Brown, 5 Vet. App. 484, 487 (1993), aff’d, 26 F.3d 141 (Fed. Cir. 1994), the United States Court of Veterans Appeals concluded that VAOPGCPREC 86-90 is consistent with the governing statutes and Congress’ policy reflected in those statutes. We note that the focus of our holding in VAOPGCPREC 86-90 was clearly on the non-traumatic nature of the cause of the heart attack. We may assume that a heart attack caused by a traumatic external event that is independent of a disease process, e.g., an electric shock, may be considered an injury.

5. VAOPGC 6-86 (3-27-86) followed and relied upon what was formerly Op. G.C. 1-81 (subsequently reissued and redesignated as VAOPGCPREC 86-90). Although VAOPGC 6-86 is not precedential, it illustrates how the opinion now designated VAOPGCPREC 86-90 has been applied. In VAOPGC 6-86, we determined that a claimant who received an influenza vaccination by injection while on inactive duty training and subsequently developed Guillain-Barre syndrome did not incur a disability resulting from an injury for purposes of section 101(24). Referencing what is now VAOPGCPREC 86-90, we reasoned that the term “injury” denotes harm from external trauma, while the term “disease” refers to some type of internal infection or degenerative process. The opinion cited several sources for the proposition that the term “trauma” commonly refers to the application of external force or violence. We further reasoned that, under modern medical practice, the routine insertion of a hypodermic needle into the body is not commonly considered to involve application of external force or violence that is characteristic of injury. However, we recognized that an injection could be considered to have caused a traumatic injury if contact with the needle caused lasting nerve or tissue damage.

6. Most recently, in VAOPGCPREC 8-2001, we held that an individual who suffers from post-traumatic stress disorder (PTSD) as a result of a sexual assault that occurred during inactive duty training may be considered disabled by an “injury” for purposes of section 101(2) and (24). This conclusion was based upon the analysis of the preceding General Counsel opinions indicating that “injury” refers to the results of an external trauma rather than a degenerative process and the fact that, according to the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, of the American Psychiatric Association, at 427 (diagnostic criterion A), a diagnosis of PTSD requires experiencing a traumatic event.

7. The concept exemplified by these VA General Counsel opinions is that
“injury” refers to the results of an external trauma, rather than a degenerative process. While, as noted in VAOPGC 6-86, “trauma” frequently is defined with reference to external force or violence, the term may commonly be considered to encompass injury to living tissue caused by an extrinsic agent. Webster’s Ninth New Collegiate Dictionary 1256 (1990). In this regard, we believe that consideration of the nature of vaccines is helpful in resolving the issue of whether introduction of a vaccine into the body may constitute trauma for purposes of determining the nature of harm resulting from the vaccine.

8. A vaccine is a suspension of attenuated or killed microorganisms or of antigenic proteins derived from them. Dorland’s Illustrated Medical Dictionary 1787 (28th ed. 1994). Vaccines artificially induce the immune system to produce antibodies that will attack invading organisms and prevent disease. National Institute of Allergy and Infectious Diseases, How Vaccines Work, available at http://www.niaid.nih.gov/daids/vaccine/how.htm. Although vaccines and mass immunization programs have been extremely successful in protecting the public health against dangerous diseases, “available data indicate that some vaccines are associated with rare but serious adverse effects.” The Anthrax Vaccine: Is It Safe? Does It Work? at 85. An adverse event following a vaccination may be either local or systemic. Id. at 86. The duration of these events may be acute or chronic, and adverse health effects may range from mild to severe. Id.

9. The foregoing discussion indicates that inoculation with a vaccine involves the introduction of a foreign substance into the body and that, while the substance is intended to and generally does have a beneficial effect, adverse reactions, sometimes of a severe nature, may result. Further, based on the above discussion, we believe that the term “injury” in section 101(24) may be interpreted to include harm not only from a violent encounter but also from exposure to a foreign substance, such as a vaccine. We recognize that in our non-precedential opinion VAOPGC 6-86 we concluded that harm resulting from an influenza vaccination would not be considered to have resulted from an injury. However, VAOPGC 6-86 focused on harm caused by the “routine insertion of a hypodermic needle into the body” and on the absence of external force or violence, rather than on the introduction of an extrinsic agent to body tissue. We believe the common understanding of the concept of “trauma,” which is recognized as the cause of “injury,” encompasses a broader definition than the one applied in VAOPGC 6-86 and that such broader definition includes serious adverse effects on body tissue or systems resulting from introduction of a foreign substance. Thus, an adverse reaction to a vaccination may be considered an “injury” as that term is used in 38 U.S.C. § 101(24).

10. This conclusion is consistent with VAOPGCPREC 86-90, in which the harm suffered (a heart attack) did not result from an external force or substance, but rather from a pre-existing disease. This conclusion is also consistent with VAOPGCPREC 8-2001, in which we recognized that a condition (in that case PTSD) that has characteristics of a disease may be considered to be the result of an injury, where it resulted from an external assault.


HELD:

If evidence establishes that an individual suffers from a disabling condition as a result of administration of an anthrax vaccination during inactive duty training, the individual may be considered disabled by an “injury” incurred during such training as the term is used in 38 U.S.C. § 101 (24), which defines “active military, naval, or air service” to include any period of inactive duty training during which the individual was disabled or died from an injury incurred or aggravated in line of duty.
Consequently, such an individual may be found to have incurred disability in active military, naval, or air service for purposes of disability compensation under 38 U.S.C. § 1110 or 1131.


Tim S. McClain


------------------------
http://www.warms.vba.va.gov/admin21/precop/dads/2002dad/dad04%5F02.doc

GENERAL COUNSEL PRECEDENT OPINION ASSESSMENT
VAOPGCPREC 4-2002

What did this opinion hold?

If evidence establishes that an individual suffers from a disabling condition as a result of administration of an anthrax vaccination during inactive duty training, the individual may be considered disabled by an “injury” incurred during such training as the term is used in 38 U.S.C. § 101 (24), which defines “active military, naval, or air service” to include any period of inactive duty training during which the individual was disabled or died from an injury incurred or aggravated in line of duty. Consequently, such an individual may be found to have incurred disability in active military, naval, or air service for purposes of disability compensation under 38 U.S.C. § 1110 or 1131.

How does this affect VBA?

This opinion affects VBA procedures - consideration should be given to updating M21-1. The provisions of this precedent opinion can be applied to any vaccination against disease.

What is a brief summary of the background and analysis?

In this opinion, the General Counsel held that an anthrax inoculation given to a veteran during inactive duty training may be considered an “injury” for purposes of determining if a disability should be service connected. This General Counsel opinion did not describe the type of evidence, however, that should be used to establish service connection for a disability that is claimed to be the result of the vaccine. As explained in a notice published by VA in the Federal Register on July 6, 2001, studies reviewed by the National Academy of Sciences (NAS) have not reported significant long-term adverse effects of the vaccine. Federal Register, Vol. 66, page 35702, July 6, 2001. As a result, no presumption has been established at this point for a disability that is caused by an anthrax vaccination.

Of course, a claimant may attempt to establish by direct proof that a non presumptive condition was actually caused by an anthrax vaccination. If we deny a claim for service connection for a disability claimed to be caused by an anthrax vaccination, we should explain to the claimant as part of our duty to notify that competent scientific or medical evidence which establishes that the vaccination actually caused the disability is required.


REVIEWERS/DATE:
Name Signature Date

First Reviewer Jean York 12-19-2002

Secondary Reviewer ___________________________ _______


211 CONCURRENCES: Signature Date

211B ________________________________ ___________

211A ________________________________ ___________

211 ________________________________ ___________


CONCURRENCES:
Staff Signature Date


212 ________________________________ ___________

213 ________________________________ ___________

214 ________________________________ ___________

215 _____(Not Required)_______________ ___________

216 _____(Not Required)_______________ ___________


DEPUTY DIRECTOR’S CONCURRENCE:

210 ________________________________ __________


ACTION BY DIRECTOR, C&P SERVICE:

Approved?

___ ___ ________________________________ ___________
Yes No Ronald J. Henke Date


ACTION ELEMENT_______________________________


DUE DATE____________________________________


ADDITIONAL INSTRUCTIONS:

[ March 26, 2006, 03:26 PM: Message edited by: Gale ]

--------------------
HONOR OUR VETERANS WITH BETTER CARE AND BENEFITS

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sparks
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Gale,

Yes this is very helpful, as the VA has determined this MS "peacetime presumed", and Bioport wrote me and admit that they have "investigated and discovered a match" with serious adverse reaction to the anthrax vaccine.
The question I have is would it make any difference being considered an injury during wartime vs peacetime? I read of this somewhere..so many papers.

Thanks Gale

--------------------
"America will never be destroyed from the outside. If we falter and lose our freedoms, it will be because we destroyed ourselves."
Abraham Lincoln

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Jim,

The only distinction I see is when anthrax was given during "inactive duty training". I've gone back and emphasized in bold.

Hope this helps.

--------------------
HONOR OUR VETERANS WITH BETTER CARE AND BENEFITS

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sparks
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Gale,
I am sure this will help, will look into this further as I filed IU for MS due to anthrax vaccine, the VA will not touch the vaccine issue and VA physicians get the deer in the headlights look and do an about face..in fact, the VA physicians are still scratching thier heads trying to think of more excuses...uhh,,funding, uhmmm..."when was your first relapse", hmmm, we don't review treatment records here...you need to schedule a MHC appt. Thanks again Gale, your a beacon.

Jim

--------------------
"America will never be destroyed from the outside. If we falter and lose our freedoms, it will be because we destroyed ourselves."
Abraham Lincoln

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GWMARINE
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I talked to my VSO about what happened to me at the VA ER and he filed for an increase. Have my symptoms got worse yes, my therapy has really gotten heated and dark,so my demons have got a good hold of my emotions. Has the stress of the ER visit made it worse, well it didnt help. You know what it did do is make me not want to go back to the VA ever again. Being that said it set me back big time. Then I think, thats what they want. Almost like they plan it that way sometimes. Being fired from my job didnt help or my wife telling me when I come back from the 11 week PTSD program better make me better or she is gone. My wife needs therapy but cannot go because of her work schedule and that she is almost loosing her job because of me. Its a mess. Today I see my therapist. Yeah! More torture! Sorry DrBob no offense. Therapy for me has recently become torture. I dont want to talk anymore or even think about my problems or discuss the VA. My BP is on the rise as I type this. What do I do ? I have to let this stuff out to someone. I have no friends at all. The internet is my out. Comedy channel has been my home these past weeks. My VN Veteran Boss saved my Job, but it isn't over yet because his job is on the line and mine could be because of ongoing investigations. I have lost my will to continue with the VA. Just thinking about my appointments and another C&P. Outside care is not a option. Tried that and was lied to and cannot afford it anyways. Church is not a option! God and I have a special understanding on that subject. Meds & therapy my not be the answer for me. Life alone in a cave maybe!

[ March 27, 2006, 05:10 AM: Message edited by: GWMARINE ]

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Keith
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GWMARINE, I too feel this way. I feel like I'm in a big trap and can't get out. I go therapist and she and my pysch doc think just talking and breathing deep breaths and meds is going to fix me all back up again. I can't seem to get through to them that this ain't working. I just can't deal with stress at all anymore, I think I've had a total breakdown and they missed it. I can't go into a cave as my wife has to go in for surgery next week and will be recovering for at least a month and I gotta try and be strong and tough for the wife and kids but I don't think I got anything left in those departments. Hang in there man, perhaps the cavalry is just over the horizon and on the way! I get the results of MRI tommorrow, my VA doc tried calling me last Sunday to go over results but just left a message on answer machine saying he got the results and we'll go over them on the 28th, never got a call from VA on Sunday before so don't know if thats good or bad. They do some weird things the VA.

Good luck Sparks took too much just tryin to undersatnd it all.
Keith

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joeg
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GWMARINE,
It's getting to where the fight against the VA should be one of their little codes for disability. Church is an option, if you can find the right place , you might run into a group such as Vietnam vets and they will let you know about the VA. Guess we just have to remember, we ourselves are the only ones who REALLY care about our health, our families and life in general, the VA is simply there to keep the ball rolling no matter how slow. When was the last time you called the VA regional office? Did you get right through, I doubt it. It's good for me to keep connected through this forum but we all have to realize that we can't put an all or nothing tag on our claims, we still have to live and fight, time is the only issue here.
Joe

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Survivir
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Check out the major Hospitals in your area...and ask if they have mental health on a sliding pay scale...it might also be called an indigent program...or something similar.

--------------------
Absence of Evidence is NOT Evidence of Absence

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